Obama can raise ceiling
I admire your political perceptions and always look forward to reading with interest Under the Hammer articles whenever I have the opportunity.
Having just read your comments in the Jan. 3 edition about the GOP "cave-ins" and the debt "that Obama says Congress has to pay for bills already run up" brings to mind the impending battle over raising the debt ceiling. I don't think the issue is fully understood.
Firstly, there is no "debt ceiling" requirement. It merely reflects the total incurred obligations of the government already appropriated by Congress. The ceiling is raised each time Congress votes on a bill and by that vote authorizes funds to pay for it. That's Congress's function under Article One of the Constitution, which restricts expenditures to those authorized only by both houses. Any authorized bill involving an expenditure automatically raises the debt ceiling.
More often than not lately, Congress is asked to raise "appropriate" money to enable the Treasury to issue and sell government debt obligations to pay bills or refinance debt and interest payments. Usually as a continuing resolution that automatically results in raising the debt ceiling.
Therefore, if the GOP strategy is to refuse to raise the debt ceiling without entitlement reductions, Congress is effectively saying no new bills will be voted and no monies will be appropriated to fund any. The consequence being a shutdown of the government. Congress does have that power under the Constitution. Whether the GOP has the intestinal fortitude to do it is another question. Newt Gingrich tried it in the '90s. The government offices closed for about two weeks, and then Gingrich caved in, if you recall.
Yet, should the GOP dig in their heels and refuse to pass any new bills, they cannot decline to raise the debt ceiling because of Section 4 of the 14th Amendment. That section specifically requires the government "to pay its debts and obligations." Being a part of the so-called Emancipation Proclamation, I suspect this section was included to deal with the payment of war-incurred obligations.
I had always regarded the 14th Amendment as dealing only with freeing of slaves. That's just the first paragraph called Section 1. However, Section 2 and Section 3 relate to civil rights for blacks and the declination of paying Confederate debts.
I had not been consciously aware of Section 4 until former Speaker Pelosi said the other day, "the president can raise the debt ceiling under the 14th Amendment." Since she is seldom ever right, I became morbidly curious and reread the 14th Amendment. Surprisingly she may be right this time – in a manner of speaking.
Section 4 says the government is required to pay its debts. It does not say which branch of government must pay. Congress obviously would have the power to pay. But if Congress declined to appropriate monies to pay those already incurred debts that make up the $16.4 trillion national debt, then, I suppose, the Executive Branch has the obligation to authorize payment of the obligations. And this must be what Pelosi is referring to. She must think that Section 4 refers not only to incurred debt, but as well to future expenditures in the context she is using it.
I'm a retired lawyer and was never regarded as a constitutional scholar, but if in the upcoming debt ceiling debate Section 4 of the 14th Amendment is invoked, I can perceive the raising of several constitutional issues requiring resolution by the Supreme Court. The first being does the president as executive officer have the power to authorize the Treasury to issue bonds to pay any of the incurred debt, or does only Congress have that constitutional power? Secondly, does the language of Section 4 restrict payment of government obligations to already incurred debts, or may it be interpreted to include continuing obligations like Social Security in futuro to entitled beneficiaries?
If our government was not able to deal rationally with the fiscal cliff issue, how will they ever unravel this potential conflict of laws issue?
Robert E. Kubicek
January 17, 2013